I was disappointed to recently learn from a colleague about the demise of the Washoe County, Nevada volunteer program known as SAFE, Special Advocates for the Elderly. SAFE’s purpose is to assist judges by independently gathering and evaluating information about elders under or facing guardianships.

Based in Reno, NV, the Washoe County SAFE program became a victim of the great recession when grants and donations apparently dried up during 2008 to 2010. The sad consequence was that an indispensably meritorious organization was forced to shut its doors. A shame I’m late on the news.

SAFE

SAFE volunteers are appointed by the court in civil or criminal matters involving allegations of exploitation, abuse or neglect of a vulnerable adult or ward. In addition to acting as the court’s eyes and ears, SAFE volunteers provide essential companionship that improves the quality of life and enhances the dignity of at-risk elders. And unlike financially motivated stakeholders, these volunteers work autonomously for the court as trained advocates not conflicted by financial self-interest.

The model for SAFE is the Court Appointed Special Advocate (CASA) program for children. CASA advocates “for the timely placement of abused and neglected children in safe, permanent homes and for the highest quality of their care while they are under the court’s jurisdiction.”

SAFE volunteers are trained to investigate the appropriateness of guardianship for elders by visiting residents in nursing homes and other facilities. They review court documents and accounting records. They interview witnesses, family members, attorneys, and facility staff. Advocates prepare reports of their findings for the court and attend court hearings for the wards.

I’ve been remiss not keeping up with the topic of elder financial abuse here as I once did. The problem hasn’t gone away. Far from it. In fact, I still think SAFE ought to be duplicated throughout the country.

Happily, the SAFE program created 6 years ago in Douglas County, NV continues to thrive. I’ve even heard Douglas County’s SAFE has become a state model and that it may be adopted by other Nevada counties.

Indeed, last week the same Nevada colleague speculated that SAFE’s laudable objectives may even be gaining traction with a Nevada Supreme Court statewide commission created a year ago to study the administration of guardianships in Nevada’s Courts.

While it’s commendable Nevada’s high court has tasked a state commission to undertake this comprehensive review, why does it always seem such praiseworthy initiatives only occur in temporal proximity to media scrutiny, scandal and public embarrassment?

Like in other jurisdictions, including Arizona’s, probate court reforms come in fits and starts and seemingly only after disconcerting media revelations. In 2011, for example, The Arizona Republic published a multi-part investigation, “Probate Court: A Troubled System,” which “revealed that Maricopa County Probate Court is allowing the life’s savings of vulnerable adults to become engines of profit for attorneys, for-profit fiduciaries and care providers. Their fees can drain a large portion of the assets of people who have lost the ability to take care of themselves.” Court reforms and remedial legislation followed.

In Nevada, ongoing problems with the probate system in Clark County came to light in a series of Las Vegas Review-Journal articles published in April 2015. “Cases high­lighted by the newspaper showed a lack of oversight by the courts, such as failing to require guardians to file annual accounts of a ward’s finances even though it is required by state law.” Two months later, there was a statewide guardianship commission.

But no matter the timing or how belated, this ought not diminish the importance of the Commission’s charge. Past Supreme Court Chief Justice James W. Hardesty is Chairperson and is joined by stellar state jurists with longstanding interests in doing right by Nevada’s most vulnerable populations.

Additionally, the Supreme Court’s Order limited the Commission membership to no more than 20 representatives from the public and private guardianship system. And in a refreshing departure from the insular approach too often taken by Arizona’s high court, Commission members also include members of the state legislature and even the news media. Public testimony has also been taken statewide.

And so strong is the Commission’s interest in getting it right that the deadline for the its final report was recently extended by the current Chief Justice to September 30, 2016. The Commission’s website has news, documents and forms as well as meeting recordings. I will keep you posted.

I was watching a segment on Sunday about America’s oldest teacher, Agnes ‘Granny’ Zhelesnik of New Jersey, who just turned 100 and is still working 35-hours a week teaching home economics to kids. Going strong five days a week, she hasn’t called in sick since she was 98. And the children adore her.

Living deep.

Which prompted me to wonder whatever became of Alice Thomas who graduated from law school at age 79. That was four years ago. And it was news then because Thomas was at the time, the oldest person ever to graduate from McGeorge Law School in Sacramento. It was another of those seasoned citizen atta-girl/atta-boy moments I like so much.

As for Alice Thomas, on graduating law school she remarked how she aspired to ‘nibble’ at injustice. Since I couldn’t locate her on the state bar’s membership directory, I’m not sure if she ever sat for the bar exam in Nevada. But all the same, that’s not stopped her from trying to make good on her aspirations and to do more than just nibble at injustice.

The now 82-year old Thomas has been busy. She founded and heads a non-profit organization called Civil Rights for Seniors to provide legal services to seniors and other Nevada residents and to empower them through advocacy. “Seniors must be our priority as they do not have time to regain their security and take part in the General Welfare, a guarantee under our Bill of Rights,” she told Senior Spectrum Newspaper.

It’s confidential.

Last October, her organization made news despite losing a state supreme court case seeking expanded public access to Nevada’s Foreclosure Mediation Program records. The records are maintained by the Administrative Office of Courts (“AOC”), which is an arm of the Nevada Supreme Court. Thomas and her organization wanted access to those records to “verify one way or another whether the program is or is not a success.”

It’s a good question even though overall I think Nevada’s Foreclosure Mediation Program has done more good than bad. Nonetheless, that doesn’t mean the program hasn’t been a mixed bag.

Civil Rights for Seniors tried testing the limits of that policy and ran into the same problems the newspaper did with respect to the “far-reaching confidentiality”of those records. The organization also made much of the fact the since the Nevada Supreme Court administers the foreclosure mediation program and shares in the fees — it had a conflict of interest. “The Court’s decision is outrageous!” said Thomas. “I am not surprised, but since when can judges sit in judgment of themselves and decide their own cases?” The case is Civil Rights for Seniors v. AOC, 129 Nev. Adv. Op. 80 (Oct 31, 2013).

NRS: Chapter 239 generally provides the public with access to inspect and copy public books and records held by governmental entities to the extent permitted by law. Civil Rights for Seniors’ records access efforts were turned back when the high court ruled the foreclosure mediation records held by AOC, a judicial entity, “are confidential as a matter of law.”

Despite this setback, I doubt it’s dissuaded Thomas and her legal team from persisting in efforts as she told “Senior Spectrum” to hold “those accountable who need to be held accountable” or from working to “create the conditions seniors need to flourish.”

Secret of life.

Like all the above-mentioned octogenarians, nonagenarians and centenarians, Thomas found her “one thing.” As Curly told Mitch inCity Slickers, it’s what each of us has to find to get to our own “secret of life.”

In Curly’s words, it’s the “One thing. Just one thing. You stick to that and the rest don’t mean shit.”

“In deciding whether an attorney’s fee is an impermissible overcharge, “The test is whether the fee is ‘”so exorbitant and wholly disproportionate to the services performed as to shock the conscience.“1 But whose conscience?

That used to be the test in California to measure the conscionability of attorneys’ fees. It was once expressly stated in the rules as whether the fees were “so exorbitant and wholly disproportionate to the services performed as to shock the conscience of lawyers of ordinary prudence practicing in the same community.”

It was fun telling non-lawyers about California’s ‘shock the conscience of lawyers‘ test. Will Rogers, after all, famously remarked, “I don’t think you can make a lawyer honest by an act of legislature. You’ve got to work on his conscience. And his lack of conscience is what makes him a lawyer.”

Unfortunately, the current rule for “Fees for Legal Services,”Rule 4-200, under California’s Rules of Professional Conduct no longer includes that unintentionally risible ‘shock and awe’ language. It was the old Rule 2-107 that had the ‘shock the conscience’ test.

‘Shocking’ fees.

The reasonableness of lawyer fees was on my mind last week on hearing about a La Jolla, California lawyer who allegedly helped himself to more than half a million dollars from the estates of two deceased clients. The lawyer says the fees were for legal services over a 9-year span. The California Bar has demurred and initiated disciplinary proceedings against the 76-year old lawyer.

Interestingly, California ethics guru Attorney Diane Karpman wrote a few years ago in her California Bar Journal’s “Ethics Byte,” column that “Usually, the State Bar will not pursue an investigation when it’s solely a fee dispute.” That said, the fee complaint here was initiated by a charitable beneficiary who objected to the lawyer’s compensation.

But it’s not like California’s probate statute doesn’t already allow lawyers to collect what everyday folks would call more than ‘reasonable’ fees for routine fill-in-the-forms work. Here’s a for instance. A comparatively modest, especially in California, $400,00 estate — basically the gross value of a house — even if it’s upside-down, and a non-fancy car, and nominal personal property generates a cool $11,000 in lawyer fees. No wonder the revocable living trust peddlers still clang that dinner bell.

California probate fees add up quickly when the statutory formula sets percentage fees according to the size of the gross estate. It’s 4% of the first $100,000; 3% on the next $100,000; 2% of the next $800,000; 1% of the next $900,000; and one-half percent of the next $15 million. For all amounts above $25 million, the court decides what’s “a reasonable amount.”

As for that La Jolla lawyer, the California Bar will determine whether or not any ethical rules were violated and whether or not sanctions will be recommended.

Eye of the beholder.

In her ethics column, Ms. Karpman also commented on an attorneys’ fee dispute concerning approximately $7.5 million dollars, which was heard by the California First District Court of Appeal. It was the case of Cotchett, Pitre & McCarthy v. Universal Paragon Corp. (Cal. App. 1 Dist. 2010)

The law firm was hired to handle what was described as complex litigation. The appellate court held that since the litigation was so complicated and the protracted fee negotiations between the attorneys and the client reflected an attempt by “equally matched parties” to share the risk of that complex litigation, it was not unconscionable that the contingency fee agreement was based on the value of the client’s higher presettlement damages estimate and not the much lower actual settlement value.

The bottom line was that the court affirmed the superior court judgment confirming the arbitrator’s multi-million dollar fee award. And no never mind that the attorneys’ fee award exceeded the value of the client’s settlement. For even more about the case, see lawyer ethics expert Carol Langford’s column, “Money, Money, Money.”

All of which gets me to the final point. Ultimately, the reasonableness of attorney’s fees is like beauty — in the eye of the beholder. Or as a friend of mine used to say, “in the eye of the beer-holder.”

For someone so young, Californian Danny Reed has seen more than his share of pain and trouble. Sixteen years ago, while asleep in his tent at Nevada’s Burning Man festival, a drunk driver drove through his tent and left Danny partially disabled and with permanent brain damage. He was 21 years old.

Danny settled his personal injury suit for $815,000 and a special needs trust was created from the net proceeds with his mother as Special Trustee.

Then three years after that disaster, Danny was visited by more bad luck. A car ran him down in a cross-walk.

The cross-walk case also settled. And the net settlement proceeds from $900,000 were also put into a trust for Danny’s lifetime care.

Six figures for 4.5 months.

Four years ago, after a probate court investigator raised issues about the administration of Danny’s trust, the probate court removed his mother as trustee and temporarily appointed the Public Guardian. There was never a finding his mother had done anything but act properly and in good faith. Indeed, funds and assets were subsequently correctly accounted for to the satisfaction of the court and the parties.

But following several hearings and over Danny’s objections, the probate court nonetheless appointed Thomas Thorpe of Dragomir Fiduciary Services, Inc. to succeed the Public Guardian as temporary trustee of Danny’s special needs trust.

Here’s the rub. The trust specified that a successor trustee was not entitled to compensation. In fact, Danny’s mother received no compensation for her work as his trustee.

Thorpe, however, served for four and one-half months and billed the estate $108,771.07 for trustee and trustee attorney fees. When he petitioned the court for his fees, the trial court awarded him $51,285.63 over objections that the trust instrument prohibited compensation.

So Danny appealed the order. A few days ago, in a published opinion, which consequently makes law in California, the appellate court reversed the trial court and directed it to deny Thorpe’s fee petition.

The appellate court relied on the plain meaning of the trust provision that “a successor trustee . . . is not entitled to compensation.” It also relied on earlier precedents, which hold that a trustor has the right to specify a trustee’s compensation. And more importantly, that “it is not within the power of the court to change, alter or modify such provisions or to substitute its predilection for the expressed instruction of the [trustor].”

And besides the court said, under earlier case authority, if the successor trustee “deemed the amount of compensation specified in the trust to be inadequate, he could have refused to act.”

Thorpe may appeal to the California Supreme Court so Danny may not yet be off the hook.

Loss of trust.

Although California has long been considered a leader in enacting laws protecting its most vulnerable citizens, the system isn’t perfect.

On November 13th — just one month before the California Appeals Court did right by Danny Reed — the Arizona Supreme Court took a pass on Marie Long’s appeal of the Arizona Appellate Court’s decision upholding a lower court award of $840,000 in fees to Marie’s lawyers and fiduciaries.

The Arizona Appellate Court found no error or prejudice — even though it did not condone “the highly inappropriate conduct” of the trial judge’s ex-parte contacts with the lawyers seeking approval of their fees.

Additional year-end CLE possibilities are provided below for the remaining procrastinators still short of year-end continuing legal education credit hours.

I picked up 1.5 credit hours this week and didn’t have to risk pepper spray-by-shopper amongst the holiday crowds. I attended the Webinar, “Guardian Accountability and Monitoring: Where Do We Stand?” presented under the auspices of the National Consumer Law Center’s (NCLC) National Elder Rights Training Project for the National Resource Center.

The program was well done and the presenters knowledgeable, including Jerry W. Hammond & Associates), Sally Hurme (AARP), Naomi Karp (Consumer Financial Protection Bureau – Office of Older Americans), and Erica Wood (ABA Commission on Law and Aging). SeePresentationsRecording

But also note you’ll need to submit such programs to your jurisdiction for CLE credit approval. For example, for Nevada credit, I used Form 2 available at the following link to the Nevada Board of Continuing Legal Education.

And like a broken record (how is that for a dated reference?), don’t fault me if your state bar kaboshes your approval request or if you don’t like the content or the presenters or if a link gets broken or just otherwise – – – you’re an angry sourpuss because you got up on the wrong side of the bed this morning.

UC Irvine’s School of Medicine is offering a free online Webinar on Monday, December 12, 2011: “Stopping Elder Financial Abuse: Promising Practices and How to Bring Them to Your Community.” It is supported by the Archstone Foundation. The Presenters are: Julie Schoen, Esq. and Shawna Reeves, MSW. The Webinar is hosted by the Center of Excellence on Elder Abuse & Neglect at UC Irvine.

From their website: “UC Irvine’s Center of Excellence on Elder Abuse and Neglect is committed to eliminating abuse of the elderly. Established with a grant from the Archstone Foundation, the Center of Excellence on Elder Abuse and Neglect is part of the School of Medicine’s Program in Geriatrics.”

The cast of characters starts with movie star Celeste Holm, now 94-years old, a bit addled, not in a good health, and married to a man almost half her age. Her husband is Frank Basile, age 48.

Who is Celeste Holm? For those unfamiliar, she was a notable screen star of a long-ago era, winning the 1947 Best Supporting Actress Oscar for “Gentleman’s Agreement.” And 3 years later, she was nominated for another supporting actress Oscar for “All About Eve.”

As the Times relates, the other members of the cast of this reality drama are Holm’s two sons, Daniel Dunning and Theodor Holm Nelson. Predictably enough, they were askance when someone much younger than they are took a supposed romantic interest in their elderly unattached parent. Think, for example, of Marshall v. Marshall and the long drawn out case of the late Vickie Lynn Marshall a.k.a. Anna Nicole Smith and her fight with E. Pierce Marshall over the billion-dollar estate of a man 62 years older than she was, her late husband,J. Howard Marshall.

And I can remember another publicized case involving yet another famous personage, the late actor and comedian Groucho Marx. That estate battle involved Groucho’s much junior companion, Erin Fleming, and Groucho’s son, Arthur. See “A Day at the Courthouse.”

But in Celeste Holm’s case, her sons have been at odds with Basile apparently from the start suspecting Basile’s supposed designs on their mother’s wealth.

Basile and Holm have been together 11 years. But after 5 years of litigation to overturn an irrevocable trust set up by Daniel Dunning, Holm’s $2 million liquid assets have mostly evaporated primarily in legal fees and other costs.

It’s a story all too familiar. And it’s also all too reminiscent of what happens when families squabble over an estate’s money. Yet another case-in-point is the one in Maricopa County, Arizona Probate Court last year concerning Marie Long, the “Elderly Millionaire Is Destitute After Payment of Fees for Lawyers“ and which I previously blogged about here.

A fight waged against you with your own money.

The irony of such battles, however, is that consistent with the law of trusts, a trustee has a duty to defend a trust against adverse claims. But here’s the rub. The disputatious families don’t always fully grasp that so long as that trustee acts in good faith, the trustee has the lawful right to pay legal fees from trust assets. See, for example, California Probate Code § 15684. Consequently, the fighting too often consumes the legacy, thus transforming the case into truly a fight over nothing.

And so when Basile and Holm commenced their litigation, Holm’s youngest son, as the trustee of the trust mounted a vigorous defense using the very trust assets meant to provide for Holm’s care and support. As the Times article notes, “Hanging over all parties is the question of why the lawsuit lasted so long and cost so much money – – – the very money they were fighting over.” And according to the story, separate from the costs incurred by her trustee son in defending Holm’s estate, Basile claims that he and his wife have litigation costs of their own, which exceed $1.5 million.

But missing from the story, is the answer to the above-asked questions. “Why has the suit dragged on?” “Why has it cost so much?”

One can only speculate. But besides the litigants, I suspect one has to also examine the role the lawyers have played for each side.

Admittedly, I am not privy to the particulars of Holm’s case other than what I read in the newspaper. Litigation, especially at the higher end Big Law levels, is extraordinarily expensive.

But apart from the Holm case, I do know this much. Whenever there’s protracted, expensive litigation, the parties are often blameworthy but the lawyers also play no small part.

To your last dollar.

A cynical lawyer friend I know who once did a lot of contingency work, which are cases where clients have no ‘skin’ in the game, was fond of admonishing, “Clients are always willing to fight to your last dollar.” But I also think the inverse is often true. Some lawyers are just as willing to fight to a client’s last dollar.

So here’s the moral of any story whenever it comes to family squabbles over an estate. When litigants refuse to consider early settlement offers or disregard prudence over what they term “principle,” far too often, assuming they’re getting paid, only the lawyers win.

Not to diminish the substantive good work found in the Final Report just issued by the “Committee on Improving Judicial Oversight and Processing of Probate Court Matters” but one recommendation sure to garner notice is the proposal that the Arizona Legislature “could assess $1 for issuance of a death certificate, which could be paid to a fund to use for post-appointment case review, including visitation.”

That the dead may help safeguard the living may strike some as unsettling but we are talking about probate, after all. Moreover, when government budgets are constrained and new revenues are sparse, it’s to the credit of the Committee that they are leaving “no [head]stone unturned” and [don’t pardon the additional pun] “thinking outside the box.”

The Committee extrapolates, “In Arizona in 2009, approximately 45,000 people died. Assuming an average of three death certificates per person were issued, the surcharge would generate $135,000 annually. Assuming an average of five death certificates per person were issued, the surcharge would generate approximately $225,000 annually.”

But hallelujahs aside, I do have a few bones to pick. For example, there’s the matter concerning the setting of fees, which I believe the Committee dodged, preferring instead to leave it to “guidelines” and market forces, even though much of the criticism is precisely over fees, particularly in Robert Anglen’s careful analysis at “Lawyers often ratchet up fees” where he writes, “Probate attorneys’ hourly rates have risen faster than inflation over the past decade. In 2004, for example, a court-appointed attorney in one complex case charged $160 an hour. By 2008, typical rates had nearly doubled to more than $300 an hour. From 2004 to 2008, inflation rose nationally a little over 15 percent, according to the U.S. Consumer Price Index.”

The second concern has to do with the Committee also dodging the matter of probate attorneys who also serve as judge pro tems, saying, “The Committee does not discern a need for new rules to guard against inappropriate contact between part-time pro tem judges and full-time judicial officers.” And if that’s not clear, further adding that, “The Committee was not charged with responsibility to investigate the use of pro tem judges in any particular case, was not equipped to do so, and has not done so.”

But at least the Committee’s Final Report acknowledged the concerns over inherent possible conflicts that may arise, e.g., “that an attorney in a contested probate matter may feel constrainedto vigorously argue against opposing counsel who also serves as a pro tem judge for fear it may affect the outcome of a future case decided by that person in a pro tem capacity.

“It was also suggested that attorneys who also serve as part-time pro tem judges may develop closer relationships with judicial officers, thereby leading to potentially improper communications.”

But not to worry.

But because judge pro tems are used infrequently and “sporadically,” the Committee seems to sing,“Don’t Worry Be Happy.”

And as for ex parte contacts, “The Committee does not discern a need for new rules to guard against inappropriate contact between part-time pro tem judges and full-time judicial officers. Ethical rules in place for attorneys and judicial officers prohibit ex parte communications between the two while court matters are pending that involve both parties.”